The General Manager vs Sri Rajashekar V Handragal
2021 Latest Caselaw 1273 Kant

          IN THE HIGH COURT OF KARNATAKA, BENGALURU

               DATED THIS THE 21ST DAY OF JANUARY, 2021

                                  PRESENT

               THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

                                       AND

                   THE HON'BLE MRS. JUSTICE M.G. UMA

                  WRIT APPEAL No.144/2020 (S-DIS)

BETWEEN:

1. The General Manager
ADM & HRD
Mangaluru Electric Supply Co., Ltd.,
REGD Office at: Pyaradim Plaza
AB Shetty Circle,
Mangaluru - 576 101

2. The Executive Engineer(EI)
O & M Division
Mangaluru Electric Supply Co., Ltd.,
Udupi Division,
Udupi District 576 101

3. The Executive Engineer(EI)
O & M Division
Mangaluru Electric Supply Co., Ltd.,
Kundapura,
Udupi District 576 101
                                                       ... APPELLANTS

(BY SHRI. C.K. SUBRAMANYA, ADVOCATE
FOR SHRI B.C. PRABHAKAR, ADVOCATE
(THROUGH VIDEO CONFERENCE))


AND:

1. Sri. Rajashekar V Handragal
S/o Viruaksha,
Aged about 31 years,
Was working as Assistant Lineman
Udupi District 576 101
                                        2


Permanent residen at
Haalihala, Narasalagi Post,
Basavana Bagewadi Taluk
Vijayapura District - 586 203

2. Sri Shivananda Hunashyal
S/o Bhimaray
Aged about 33 years,
Was working as Assisgtant Lineman
Bynduru, Kundapura Taluk
Udupi District 576 101

Permanent resident at
Ambalanuru post
Narasalagi
Bagewadi Taluk
Vijayapura 586 203
                                                 ... RESPONDENTS

(BY SHRI M RAGHAVENDRACHAR, ADVOCATE FOR R1 AND R2
(THROUGH VIDEO CONFERENCE)

      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE COMMON ORDER DATED
22.01.2020 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION
NO.29725/2019(S-DIS)C/W WP.NO.30001/2019 (S-RES) AND DISMISS THE
WRIT PETITIONS FILED BY THE PETITONERS.

    THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:-

                              JUDGMENT

The legality and correctness of the order of the learned Single

Judge dated 22.01.2020 in W.P.No.29275/2019 (S-DIS) C/w

W.P.No.30001/2019 (S-RES) is called in question in this appeal filed

by the Mangaluru Electric Supply Co.,Ltd., through its General

Manager and Others.

2. Briefly stated the facts are that, respondents herein were

appointed as Assistant Linemen in the appellant-Company. They were

discharging their duties as Assistant Linemen. It came to the notice of

appellant-company that respondents herein had sought employment

on the basis of allegedly forged marks card. Hence, in that regard

notices were issued to respondents. One such notice is dated

06.06.2019, which is in the nature of final show cause notice informing

that the marks card submitted by the respondents had been sent to

the Joint Director (Exam), office of the Commissioner for verification

and validation of the Temporary State Professional Certificate. The

Commissioner, Industrial Training and Employment Bengaluru, had

verified the said professional certificate and had reported the

discrepancy of marks found in the marks card. Hence, the marks card

found were not genuine. Therefore, by the final show cause notice

dated 06.06.2019, appellant contended that the respondents had

sought employment for the post of Assistant lineman on the basis of

fake/forged marks card. Therefore, it was necessary to initiate

appropriate disciplinary proceedings against them. The respondents

were called upon to produce necessary certificates to prove the

genuineness of the marks card within 07 days from the date of notice,

failing which, it was stated, they would be removed from service as

per Company rules.

3. Learned counsel for the appellants submitted that there was

no reply received from respondents pursuant to the final show cause

notice. Therefore, by order dated 06.07.2019, respondents, were

terminated immediately w.e.f. 06.07.2019 i.e., with regard to

respondent - Sri Rajashekar V Handragal and as far as other

respondent Sri. Shivananda Hunshyal is concerned, termination was

w.e.f. 15.10.2018. Being aggrieved by the same, respondents filed

respective writ petitions before this Court assailing their termination

from service.

4. Learned Single Judge on considering the case of the

respective parties observed that no enquiry had been held in

accordance with the regulations, dismissal without holding of an

enquiry was bad in law, therefore, it could not be sustained and

accordingly, learned Single Judge set aside the dismissal and directed

that respondents be reinstated into service with all consequential

benefits from the date of dismissal till reinstatement. Being aggrieved,

this appeal has been preferred.

5. We have heard learned counsel for appellants and learned

counsel for respondents and perused the material on record.

6. Appellants' counsel contended that when the marks cards

produced by the respondents were ex-facie fabricated and forged,

which has been ascertained from the department i.e., from the

Commissioner, Industrial Training and Employment, Bengaluru, the

appointment of said respondents as Assistant linemen in the appellant

- company on the basis of the said marks card is per se void. In the

circumstances, appellants issued show cause notices to respondents

and when no reply was received proceeded to terminate the

respondents from service. The said termination is in accordance with

law. But, the learned Single Judge has interfered in the matter, has set

aside the termination and reinstated the respondents with all

consequential benefits. He contended that, if at all, respondents were

aggrieved by their termination, they could have approached

appropriate forum, viz., Labour Court and sought for relief before the

Labour Court. The appellants herein would have established that the

termination was just and proper, instead they straight away

approached this Court and the learned Single Judge has granted relief

to the respondents which calls for interference in this appeal.

7. In this context, learned counsel for appellants with reference

to the judgments of the Hon'ble Supreme Court in the case of The

Workmen of Firestone Tyre and Rubber Co. of India (Pvt.)Ltd.

Vs. The Management and Ors., reported in AIR 1973 SC 1227

and Engineering Laghu Udyog Employees' Union Vs. The Judge,

Labour Court and Industrial Tribunal and Ors., reported in

(2003)12 SCC 1, contended that even if, there is no enquiry held or

if there is defective enquiry held, before the Labour Court, an

opportunity could be given to the employer to adduce evidence for the

first time, which would be in the interest of both the Management as

well as the employee so as to enable the Labour Court to be satisfied

about the alleged misconduct of the employee. He further contended

that in the instant case, appellant is aggrieved, inasmuch as the

respondents have got employment on the basis of fake marks cards

and hence, their very appointment was null and void. Therefore,

learned Single Judge ought not to have directed that respondents be

reinstated with all consequential benefits.

8. Per contra, learned counsel for respondents supported the

impugned order and contended that the principles of natural justice

would require that an enquiry be held in the matter. The material that

has been secured by the appellants from the Commissioner, Industrial

Training and Employment Bengaluru, ought to have been confronted

to the respondents by holding an enquiry in accordance with law and

an opportunity ought to have been given to the respondents to explain

the veracity of the marks card, on the basis of which they secured

employment as Assistant lineman in the appellant Company. In the

absence of holding an enquiry, respondents could not have been

straight away removed from service. In that regard, he contended that

there has been violation of principles of natural justice in the instant

case and hence, the order of the learned Single Judge, would not call

for any interference.

9. We have considered the submissions of the learned counsel

in light of the facts of the present case. It may be the case of the

appellants that respondents herein have secured employment as

Assistant Lineman on the basis of fake or forged marks cards. Be that

as it may. In the final show cause notice, dated 06.06.2019,

appellants had informed the respondents that, it was necessary to

initiate appropriate disciplinary enquiry in light of the fact that they

had sought employment on the basis of fake or forged marks card. If

that was so, it was the duty of the appellants to initiate disciplinary

proceedings against the respondents, instead by an order dated

15.10.2018 and 06.07.2018, respondents have been simply

terminated from service without being confronted with the report

secured by the appellants from the Commissioner of Industrial Training

and Employment Bengaluru, regarding the veracity of marks cards,

they had submitted to the appellants and on the basis of which, they

had secured employment as Assistant lineman. Hence, appellants had

to comply with their own decision to initiate appropriate disciplinary

proceedings against the respondents.

10. That apart, we also find that the respondents have been

simply terminated without following elementary principles of natural

justice. It is well settled that before any adverse order involving civil

consequences is passed, it is the duty of not only the employer, but,

any authority, which is passing such an order to hear the employee or

any other person, who would be affected with adverse civil

consequences. In this regard, we placed reliance on the time tested

judicial precedent of the Hon'ble Supreme Court in the case of State

of Orissa Vs. Dr.(Miss) Binapani Dei and Others reported in AIR

1967 SC 1269, wherein, it has been held that even administrative

orders which involve civil consequences have to be passed consistently

with the rules of natural justice. In that case an order of compulsory

retirement was based on a certificate indicating a , disputed date of

birth and petitioner therein had not given the report of the enquiry

officer who conducted the enquiry into the correct date of birth to the

respondent therein was a ground opined by the Hon'ble Supreme

Court.

11. It was observed therein that after giving an opportunity of

being heard and meeting or explaining the evidence placed could be a

decision taken in accordance with law, The learned Single Judge in the

instant case has followed the said dictum and has set aside the orders

of termination and directed reinstatement with all consequential

benefits from the date of dismissal till reinstatement, reserving liberty

to the competent authorities to proceed in accordance with law. We

do not find any infirmity in the order of the learned Single Judge.

12. We also note that the learned Single Judge in the instant

case has directed reinstatement of the respondents with all

consequential benefits from the date of dismissal till reinstatement. We

affirm the same. However, reinstatement with all consequential

benefits shall be subject to the result of the enquiry proceedings.

Therefore, appellants would have to conduct an enquiry against

respondents in accordance with law and thereafter take a decision in

the matter. Hence, we find there is no merit in this appeal. Appeal is,

hence dismissed.

No costs.

In view of the dismissal of the appeal, I.A.No.1/2020 stands

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

psg*